Begley v. State

• Decision Date: 05 February 1986
• Docket Number: No. 84-2583,84-2583
• Parties: 11 Fla. L. Weekly 321 Vernon David BEGLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 70

483 So.2d 70

11 Fla. L. Weekly 321

Vernon David BEGLEY, Appellant, v. STATE of Florida, Appellee.

No. 84-2583.

District Court of Appeal of Florida,

Fourth District.

Feb. 5, 1986.

Rehearing Denied March 7, 1986.

Ronald A. Dion, of Entin, Schwartz, Dion & Sclafani, North Miami Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Noel A. Pelella, West Palm Beach, for appellee.

RIVKIND, LEONARD, Associate Judge.

Begley was charged in a four-count indictment with sexual battery upon his three-year-old daughter between the 7th and 22nd days of July, 1983. Count I charged intercourse, Count II cunnilingus A jury convicted Begley of the lesser-included offenses of attempted sexual battery on Counts I and II, of sexual battery on Count III and acquitted him on Count IV. The trial court sentenced him to ten years on Count I, ten years on Count II and to a life sentence with a mandatory twenty-five years' imprisonment on Count III, each sentence to be served consecutively.

Count III fellatio and Count IV manual manipulation of the anus, in violation of section 794.011(2) of the Florida Statutes.

Appellant urges three points on appeal. We shall address each point seriatim.

POINT I

Appellant contends the trial court erred in finding the victim (five years old at the time of trial) competent to testify and in allowing the state to ask her leading questions. This point is without merit.

We have reviewed the entire record and find that it supports the judgment of the trial court that the child was competent to testify. Both counsel participated in an extensive voir dire examination of the child concerning her competency to testify. At the conclusion of the hearing, the court found as follows:

The court finds that [victim] is a young girl five years old, and she has as much if not more intelligence than the average five-year-old and she is aware of where she is and she is aware of what it means to tell the truth.

"It is within the sound discretion of the trial judge to decide whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness, and his ruling will not be disturbed, unless a manifest abuse of discretion is shown." Rutledge v. State, 374 So.2d 975, 979 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980). The test is intelligence rather than age. Fernandez v. State, 328 So.2d 508 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1081 (Fla.1976). No abuse of discretion has been demonstrated.

The state was allowed to use leading questions on direct examination of the child. The use of leading questions to a child of tender years is also within the sound discretion of the trial judge. Ellis v. State, 25 Fla. 702, 6 So. 768 (1889). See also McCloud v. State, 335 So.2d 257 (Fla.1976); Anderson v. State, 88 Fla. 93, 101 So. 202 (1924); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912). We also find no abuse of discretion has been demonstrated in this regard.

POINT II

Appellant next contends the trial court erred in permitting his estranged wife and a sexual counselor to testify over hearsay objection as to prior consistent statements attributed to the victim.

The child's mother was permitted to testify that on the evening of July 22, 1983, while cleaning her daughter's ears, her daughter said she had a secret between her and her father. The mother then testified as follows:

"Q Did she indicate what the secret was?

"A Yes.

"Q Go ahead.

"A She said that her father had licked her p---y."

Appellee argues that the statement was not hearsay because it was not introduced to establish the truth of the matters contained in the statement, but to establish that the victim had learned the explicit language from her father. However, this argument is without merit since there is nothing in the record to indicate where the child learned the language, assuming, arguendo, it would otherwise be admissible for such purpose.

The state further argues that the statement was admissible under the excited utterance exception to the hearsay rule contained in section 90.803(2), Florida Statutes. This argument also lacks merit since the state failed to lay any predicate that the victim's statement to her mother was made immediately after the event or at her Finally, the state argues that the mother's testimony is admissible under section 90.801(2)(b) of the Florida Statutes, which provides:

                first opportunity to complain and that the statement was made under the stress of excitement caused by the event.   Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982);  Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982).  There is no indication in the record as to when within the two-week period the incidents occurred, nor is there any indication as to how long she had been home before she made the statement
                

90.801 Hearsay; definitions; exceptions.

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

....

(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication; or....

Prior to the time of the statement, appellant had filed for divorce and had sought custody of his daughter. Appellant suggested that his daughter was compelled to lie at the trial by both her mother and the state, due to the pending custody dispute. We agree with the state that the child's statement was properly admissible under the aforesaid section of the Florida Evidence Code. The hearsay exception involving bias, corruption or other motive to falsify is applicable where the prior consistent statement was made prior to the existence of a fact said to indicate bias, interest, corruption or motive to falsify. Parker v. State, 476 So.2d 134 (Fla.1985);

McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982). In the case sub judice, an effort was made to impeach the child's credibility by charging that her testimony had been improperly influenced by both her mother and the state. The admission of her statement to her mother lessened the force of the impeaching evidence by showing the victim had made a consistent statement before she allegedly had been improperly influenced by the state. Therefore, her prior consistent statement was admissible to rebut this implied charge. See Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974).

Appellant also challenges, as hearsay, the admission of statements the child made to a counselor at the Sexual Assault Treatment Center in Fort Lauderdale. The statements described an act of fellatio with appellant. The state argues that the testimony was properly admitted as a hearsay exception under section 90.803(4), Florida Statutes, which provides:

(4) Statements for purposes of medical diagnosis or treatment.

Statements made for purposes of medical diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

The counselor testified that she met with the victim "just to see how she was doing and what was troubling her at the time." The counselor also testified that part of her job was to prepare young children for their courtroom testimony.

While statements admissible under this exception need not be made to a physician, at a minimum, there must be a showing (a) that the statements were made for the purposes of diagnosis or treatment, and (b) that the individual making the statements knew the statements were being made for this purpose. The record is devoid of any...